Molly Vogt, as Trustee for the Heirs and Next of Kin of Joshua Vogt, Deceased v. CO Robert Anderson, et al.

When a party destroys evidence “with the intent to deprive another party of the information’s use in the litigation,” Federal Rule of Civil Procedure 37(e)(2) empowers the district court to “instruct the jury that it may . . . presume the information was unfavorable to” the destroyer. The district court below awarded an adverse-inference sanction against respondents after finding that county jailers watched and then intentionally destroyed the only video showing inside the cells where an arrestee in their care sickened and died of a drug overdose. But a divided Eighth Circuit panel affirmed summary judgment for respondents by crediting their self-serving statements about the events the destroyed video could have captured. Judge Shepherd dissented, observing that the court had opened a circuit split, which includes at least the Second, Fifth, and D.C. Circuits. The Eighth Circuit denied rehearing en banc by a six-to-five vote. The question presented is: Whether a jury should decide the weight of an adverse inference from the intentional destruction of evidence that could have contradicted the spoliator’s version of events.